Estate

Legalese 101: Probate Court

 
Legalese 101 is our running series aimed at helping you understand key terms found in common legal documents. At J. Cutler Law we don’t just want to collect a paycheck, we want to make sure our clients’ legal needs are fully met. A fundamental part of that is ensuring that they completely understand the legal work we do for them.

Legalese 101 is our running series aimed at helping you understand key terms found in common legal documents. At J. Cutler Law we don’t just want to collect a paycheck, we want to make sure our clients’ legal needs are fully met. A fundamental part of that is ensuring that they completely understand the legal work we do for them.

 

You may have heard people suggest that it’s a good idea to avoid probate court. And it is. But many people don’t understand exactly why.

Probate court is the name of the specific court that oversees the way a deceased person’s property is distributed to others. It also covers crucial matters like who will care for any of the deceased’s minor children.

So, in the most basic sense, probate court makes sure that your things go to the right people once you die and that your minor children will be properly cared for.

That might make you wonder why there’s talk of avoiding it. It doesn’t sound like such a bad thing, right?

Although probate court serves an important purpose in many cases, the process of going through probate can be expensive and time consuming for the friends and family you leave behind. Probate court handles cases responsibly, as you’d expect, but there’s no guarantee that they’ll decide to distribute your possessions, or provide for the care of your minor children, in the way that you would have.

The good news is that probate court is avoidable. If you’ve arranged a proper estate estate plan then you can avoid probate and ensure that your children and are cared for by the person you trust and your possessions are given to the correct people.

Call J. Cutler Law Today

J. Cutler Law is one of Utah’s most trusted estate planning firms and we’d be happy to answer more of your questions and help you arrange the estate planning you need. We can help you outline all of your estate planning options based on your needs and advise on the best course of action. Call us today for a free consultation at (801) 618-4469 or click the appropriate button to schedule a free consultation or begin the estate planning process.

Legalese 101: Trusts

 
“Legalese 101” is a running series aimed at helping you understand key terms found in common legal documents. At J. Cutler Law, we want to make sure our clients’ legal needs are fully met and a fundamental part of that is ensuring that they completely understand the legal work we do for them.

“Legalese 101” is a running series aimed at helping you understand key terms found in common legal documents. At J. Cutler Law, we want to make sure our clients’ legal needs are fully met and a fundamental part of that is ensuring that they completely understand the legal work we do for them.

 

A Trust is just an agreement between a trust creator and the person who has legal control of the trust (called a trustee). This is often the same person initially but a successor trustee is usually designated for when the original trustee passes away. A common example would be a married couple that set up a trust (trust creators) and control it initially (trustees) but then designate their oldest child to take control of the trust when they pass away (successor trustee).

Upon creation of the trust, the trust creator (also called a Grantor, Trustor, or Settlor) transfers property to the trust by changing title to the property into the legal name of the trust agreement. So, for example, a homeowner would change the ownership of their home from their individual name to the name of the trust.

A trust agreement includes instructions to the Trustee regarding the management and control of everything included within the trust property. The Trustee then follows the trust instructions and manages the trust property for the benefit of those that will one day receive the trust property, called Beneficiaries (covered in another Legalese 101).

The most common type of trust is a living trust, which simply means a trust agreement whereby the Grantor and Trustee are the same person and the Beneficiaries don’t receive the trust property until the Grantor/Trustee passes away.

Call J. Cutler Law Today

J. Cutler Law is one of Utah’s most trusted estate planning firms and we’d be happy to answer more of your questions and help you arrange the estate planning you need. We can help you outline all of your estate planning options based on your needs and advise on the best course of action. Call us today for a free consultation at (801) 618-4469 or click the appropriate button to schedule a free consultation or begin the estate planning process.

How Do I Know If My Estate Is A Small Estate?

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Not all estates need to go through the probate process, and not all estates need to be written as trusts.

For many individuals who do not own a significant amount of property, the small estate procedure will assist heirs in resolving outstanding estate issues.

The Purpose of Small Estates

Small Estate procedures were created to assist heirs in obtaining the deceased’s property and assets without the lengthy process of probate. Small estates can also be done relatively quickly while keeping both time and costs low, both of which appeal to those involved.

Small estates can be completed through affidavits executed by either the spouse or heirs of the deceased. They give the affidavit to the holders of the deceased property to get the property.

In certain states, you must present the affidavit to the Court first before going after the property. In Utah, if the value of the entire probate estate does not exceed $100,000, the estate is considered a “small estate,” and it can be closed within thirty days after the death.

Determining the Value of the Estate

Small estate procedures can happen with or without the will. All that matters is the total value of the property involved in the estate.

To determine the value of the estate, it is recommended you make a list of all of the deceased’s assets. Come with an accurate value as best you can with respect to the various assets, and if you are unclear on certain line items, attempt to get an appraised value.

Certain assets are not included in this list, including property in joint tenancy, retirement plans, payable-on-death (POD) accounts, real estate transferred through a transfer-on-death deed, or a transfer-on-death brokerage account. Life insurance proceeds are similarly excluded from the list of assets.

The Small Estate Affidavit

The spouse or heirs need to file out a simple affidavit and wait for a 30-day period before distributing the assets.

The small affidavit can be used to collect property, except real property, if the deceased living in Utah at the time of death or his property was located in Utah; the person signing the affidavit is a surviving spouse, child or heir of the deceased, or if this individual is named as a beneficiary in the will; the person who signs the affidavit is entitled to receive the deceased’s property, 30 days have passed since the death of the decedent; no one else is appointed or is seeking to be appointed as personal representative in any state; and the deceased’s estate value is not more than $100,000.

Summary Probate Small estates can be subject to a summary administrative procedure. If, after look at all property and appraising the value of the estate, minus lines and encumbrances, it does not exceed the homestead allowance, exempt property, family allowance, costs and expenses of administration, reasonable funeral expenses and any medical and hospital costs of the deceased’s last illness, the personal representative can distribute the assets without giving notice to creditors.

The personal representative then files a sworn closing statement with the court stating the nature and value of the estate assets, the value of the estate, any debts that were outstanding as part of the estate, and a statement that the personal representative has fully administered the estate, paying off needed debts and disbursing the assets. A closing statement needs to be given to all beneficiaries and creditors showing that their claim has been satisfied in full.

Call J. Cutler Law Today

To determine if assets are classified as a small estate, or to answer any of your Estate Planning questions, call J. Cutler Law for a free consultation at (801) 618-4469 or contact us online.